Last year I outlined a
number of issues of concern in the PBMP consultation draft so I was keen to
see how well these had been addressed in the final version.

It was not an easy question to answer as the whole document
has been substantially rewritten to the extent that the original draft is now barely
recognisable within it.

The original draft had 15 numbered paragraphs in four main
sections. In addition there were seven endnotes running to four pages dealing
with issues as diverse as male circumcision, abortion, blood transfusion and
cremation forms.

The final version has 31 numbered paragraphs in nine
sections and a new ‘legal annex’ summarising relevant legislation. The endnotes
have gone with only one of the seven being moved in any substance to the main
text.

Of the 15 original paragraphs in the draft document only one
has escaped the editor’s red pen. One has been removed completely and ten have
had whole sentences or phrases added or removed along with other more minor
changes.

The result is a document that is easier to read and more
logically arranged which, in the main, attempts to provide principles rather
than detailed advice about specific issues. It also more readily refers doctors
to seek legal advice rather than trying to interpret and apply legislation.

Overall it is a big improvement and the legal errors in the
first draft have been largely (although not I believe completely) dealt with.

The guidance recognises that ‘doctors have personal values
that affect their day-to-day practice’ and asserts that the GMC doesn’t wish
‘to prevent doctors from practising in line with their beliefs and values’
provided that ‘they act in accordance with relevant legislation’ and ‘follow
the guidance in Good Medical Practice’.

It also recognises that doctors ‘may choose to opt out of
providing a particular procedure because of (their) beliefs and values’ as long
as the legal rights of others are not breached. It also concedes that ‘it may…
be appropriate to ask a patient about their personal beliefs’ and ‘to talk
about your own personal beliefs’ in certain circumstances.

How many of these recommendations have the GMC taken on
board? Some, but not all.

My first concern was the lack of reference to whole person
medicine. Although the draft guidance addressed in the prologue the importance
of ‘adequately assessing the patient’s conditions, taking account of their
history (including the symptoms, and psychological, spiritual, religious,
social and cultural factors)’ there was very little if anything on the
relationship between personal beliefs and health or of the importance
of practising holistic care which addresses these issues in practice.

I was therefore pleased to see that the patient’s ‘views and
values’ have been added as factors to take into account in history taking. This
is an improvement in the direction of acknowledging that all patients have a worldview
which should be taken into account in considering their treatment options.

This
is also helpfully acknowledged in the (now) clearer statement that ‘personal
beliefs and cultural practices and central to the lives of doctors and
patients’.

My second concern was the further tightening of restrictions about discussing
personal beliefs. The draft guidance said that:

‘During a patient consultation, you may talk about your own personal
beliefs only if a patient asks you directly about them or if you have
reason to believe the patient would welcome such a discussion (eg. The patient
has a Bible or Quran with them or some other outward sign or symbol of their
belief)’

We suggested that
the guidance be amended to make it clear that patients may indicate they would
welcome such a discussion in the course of giving a spiritual or religious
history in response to sensitive questioning. Doctors should not have to rely
solely on unlikely nonverbal clues (such as carrying a Bible or Quran!) to
obtain this information.

We were therefore
pleased to see that the GMC had added into this section the need to take
account of ‘spiritual, religious, social and cultural factors’ in ‘assessing a
patient’s conditions and taking a history’ and removed the rather comical
reference to the patient carrying a Bible or Quran. The wording has also been
slightly changed in giving permission for a doctor ‘to talk about your own
personal beliefs only if a patient asks you directly about them or indicates
that they would welcome such a discussion’.

It is hard to see how this wording will not invite some vexatious
complaints but it could have been worse and at least grants some flexibility
and freedom to tactful doctors. But surely it would have been sufficient simply
to have said that any sharing of personal beliefs must be done with permission,
sensitivity and respect and with the patient’s best interests foremost. Trust
is after all best built through openness and compassion. I’ve written at more
length on this section of the guidance here.

My third concern was that the draft guidance was not clear
enough about doctors having a legal right to object conscientiously to some
procedures.

Like the draft, the final version confirms, in the legal
annex, that ‘the Human Fertilisation and Embryology Act 1990 prevents any duty
being placed on an individual to participate in any activity governed by the
Act’. So far, so good.

However it is much more vague, and I think legally
inaccurate (I am currently seeking advice on this) about abortion. The 'Legal
Annex’ now reads as follows:

'In England, Wales and Scotland the right to refuse
to participate in terminations of pregnancy (other than where the
termination is necessary to save the life of, or prevent grave injury to, the
pregnant woman), is protected by law under section 4(1) of the
Act. This right is limited to refusal to participate in
the procedure(s) itself and not to pre- or post-treatment care,
advice or management, see the Janaway case: Janaway v Salford Area Health Authority
[1989] 1AC 537'

Does Section 4(1) of the Abortion Act really not exempt
doctors from 'participating' in 'pre or post management care, advice or
management'? This is actually still a grey area legally and not nearly as clear
cut as the GMC implies.

I believe the GMC’s analysis is rather an over-reading of the
Janaway case which defined ‘participation’ as ‘actually taking part in
treatment designed to terminate a pregnancy’. If so this is quite serious as
the GMC is then misleading doctors about what the law actually says (For a thorough explanation of the current
law on conscientious objection to abortion see ‘Conscientious
objection to abortion - ethics, polemic and law’ by Charles Foster in
the CMF journal Triple Helix).

My fourth concern was the implication that doctors who have
a conscientious objection to a particular procedure have a duty to make
arrangements for patients to be seen by another colleague who doesn't share
their objection. Many doctors would regard such action as unethical complicity.
To put this in context, if euthanasia became legal, how would you feel about
being struck off for refusing to ‘make arrangements’ for patients requesting
euthanasia to see colleagues who would do the deed? I suspect none too pleased!

But Section 13 says, with respect to procedures one has a
conscientious objection to, that:

'If it’s not practical for a patient to arrange to see another doctor, you
must make sure that arrangements are made – without delay – for another
suitably qualified colleague to advise, treat or refer the patient. You must
bear in mind the patient’s vulnerability and act promptly to make sure they are
not denied appropriate treatment or services.'

The use of the word 'must', according to paragraph 5 of 'Good Medical Practice' implies that this is an overriding duty or principle. But on what basis is the GMC saying this? It is not at all clear that this is a legal obligation, so on what basis is the duty or principle absolute? There is of course nothing to stop the GMC recommending
this course – in which case I would have expected them to have used the word ‘should’ rather than 'must'. But again the GMC may be
overstretching itself here and could be vulnerable to judicial review.

My fifth concern was the implication in the draft guidance
that doctors had no right to conscientious objection in the case of ‘providing
gender reassignment’ or ‘prescribing contraceptives to unmarried people’.

We challenged the GMC on both of these, saying that they
were misrepresenting the provisions of the Equality Act 2010.

I was therefore pleased to see that the GMC had completely
back tracked in the case of ‘gender reassignment’ (see more detail on this here)
but concerned to see that they were still arguing that doctors could not
prescribe contraceptives for married people but refuse to prescribe for the unmarried.
I don’t expect this issue will affect many doctors, but there will be some and
being ‘unmarried’ is not actually a protected characteristic under the Equality
Act. In other words this might also be open to a legal challenge.

Overall the guidance is not too bad and could have been
considerably worse. It was clearly worth responding to the consultation as our
responses, and those of others, have had a considerable impact on the final
draft. This is important as it is the standard against which doctors will be
judged.

There are however some assertions in the guidance that are
still, I believe, less legally clear than the GMC has implied. These deserve
further exploration and possibly even legal challenge.

In this era of increasing hostility to Christian faith and
values Christian doctors will undoubtedly face more vexatious complaints from
patients and colleagues who feel they should be silent about their faith
convictions or be forced to provide services to which they have a conscientious
objection.

In the main they will find this new GMC guidance on
‘Personal Beliefs and Medical Practice’ more of a help than a hindrance.

But the real test will be to see how the new guidance is
applied by the GMC in individual cases.

I suspect the bigger threat will come from some of the new
legislation introduced over recent years and the way it has been misinterpreted
(or over-interpreted) by NHS Trusts and medical institutions (see here).

We need to count the cost and be prepared for conflict,
whilst working hard with patients and colleagues to defuse potential conflicts
and find ways forward that enable conscientious objection to be respected.

Reasonable accommodation of those who wish to
conscientiously object is far better than forcing them to do things they believe
are profoundly wrong.

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Kiwi, Christian and Medical

This blog deals mainly with matters at the interface of Christianity and Medicine. But I do also diverge into other subjects - especially New Zealand, rugby, economics, developing world, politics and topics of general Christian and/or medical interest. The opinions expressed here are mine and may not necessarily reflect the views of my employer or anyone else associated with me.

About Me

I am CEO of Christian Medical Fellowship, a UK-based organisation with 4,500 UK doctors and 1,000 medical students as members. The opinions expressed here however are mine, and may not necessarily reflect the views of CMF or anyone else associated with me.